The Opening of American Law: Neoclassical Legal Thought, 1870-1970

Hardcover | October 29, 2014

Two Victorian Era intellectual movements changed the course of American legal thought: Darwinian natural selection and marginalist economics. The two movements rested on fundamentally inconsistent premises. Darwinism emphasized instinct, random selection, and determinism. Marginalismemphasized rational choice. Legal theory managed to accommodate both, although to different degrees in different disciplines. The two movements also developed mutually exclusive scientific methodologies. Darwinism emphasizing external indicators of welfare such as productivity, education or health,while marginalists emphasized market choice. Historians have generally exaggerated the role of Darwinism in American legal thought, while understating the role of marginalist economics. This book explores these issues in several legal disciplines. One is Progressive Era movements for redistributive policies about taxation and public goods.Darwinian science also dominated the law of race relations, while criminal law reflected an inconsistent mixture of Darwinian and marginalist incentive-based theories. The common law, including family law, contract, property, and tort, moved from emphasis on correction of past harms to management ofongoing risk and relationship. A chapter on Legal Realism emphasizes the Realists' indebtedness to institutional economics, a movement that powerfully influenced American legal theory long after it fell out of favor with economists. Five chapters on the corporation, innovation and competition policy show how marginalist economicstransformed business policy. The ironic exception was patent law, which developed in relative insulation from economic concerns about innovation policy. The book concludes with three chapters on public law, emphasizing the role of institutionalist economics in policy making during and after the NewDeal. A lengthy epilogue then explores the variety of postwar attempts to reconstruct a defensible and more market-oriented rule of law after the decline of Legal Realism and the New Deal.

Herbert Hovenkamp is the Ben V. and Dorothy Willie Professor of Law and History at the University of Iowa, where he teaches antitrust, torts, American legal history, and innovation policy. He has written numerous books in the these areas, and is the author of Antitrust Law, the leading
resource in that field. He is a fellow of the Ame...

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Table of Contents

IntroductionPart I. Human Nature and the Sources of Law1. Scarcity, Biology and the Rational Actor2. Natural Selection, Deterrence and Mental Defect3. The Science and Law of RacePart II. Neoclassical Legal Thought4. Economics and Law in the Progressive Era5. Social Value, Taxation and Public Finance6. From Institutionalism to Legal Realism7. Recasting the Common Law: the Management of Risk and RelationshipPart III. The Neoclassical Firm and the Formation of Modern Business Policy8. The Revolution in Corporate Finance9. The Separation of Ownership and Control10. The Twisted Path to Innovation Policy11. Structuralism in Competition Policy12. Distribution and Vertical ControlPart IV. Neoclassical Public Law13. The Substantive Due Process Triumvirate: Health, Safety and Morals14. The Waning of Classical Labor Policy15. The Regulatory State and FederalismEpilogue: The New Deal at Bay